Nothing found in this site should be taken as legal advice. If you want legal advice, find a lawyer. The law books contain much more detail than has been included in this site, and the details below may go out of date. Many cross references and important judicial decisions noted in those books clarify the meaning of each law.
For helplines and other legal advice please visit our legal advice page.
Simple Guide
Sex – legal over the age of 16 so long as it’s mutually consensual
Prostitution – legal (although many laws criminalise the activities involved with it, most commonly used are laws which criminalise brothels, kerb crawling, street soliciting and trafficking )
Porno – legal so long as it’s not depicting extreme S/M or sex involving animals or children and is sold in licenced premises. Selling through Royal Mail is not legal.
Swinging – kind of legal
S/M – legal so long as no lasting wounds and no piercing for pleasure
In Depth Guide
Laws relating to each topic are written in brackets even though they may seldom or ever be enforced (especially the older ones)
Introduction
Britain has dozens of laws restricting our sexual activities, some dating back hundreds of years! Many of these laws contradict each other. Quite a number are no longer regularly enforced but, while they remain on the statute books, one never knows when someone will get caught out. This is arbitrary and unfair.
You may wonder why these antiquated laws don’t get repealed. It is because no British politician has ever been courageous enough to publicly appear pro-sex. They know that the majority of people believe in “live and let live” but they prefer not to lose the votes of the vociforous, grundyist, anti-sex minorities. More importantly, British politicians live in fear of being exposed for their secretly libidinous lifestyles, and go to great lengths to appear po-faced in public. So what we get is more restrictive laws, not less!
In the last few years we have gained some new freedoms. As a result of a court case under the Human Rights Act, the British Board of Film Classifiaction licenses hard-core porn. Another case (Whiplash 1996) made sex parties legal. Next we need a successful brothel case, and a clear-cut successful S/M case, probably using the Human Rights Act. What an idiotic way to get freedoms which governments know most people want, but for which they will not introduce legislation.
The SFC has drafted a Sexual Freedom Bill but this has been ignored by the Home Office. The Sexual Offences Act 2003 makes the law more, rather than less restrictive. It includes a clause that makes the male in heterosexual consensual intercourse with a female under thirteen automatically guilty of rape (Clause 6) carrying a maximum penalty of life imprisonment. The age limit for indecent photos was raised from 16 to 18 despite the fact that the age of consent for both hetero and gay sex is 16! Sixteen-year-olds kissing in public would also be criminalised. Please!
We have tried to describe this legal mess as simply as possible for you to digest. You may have noticed that restrictive laws don’t seem to apply outside sex establishments. For example, you can walk into Waterstones and purchase a magazine or book featuring photos that would be illegal in a licensed sex shop because it is subject to strict regulation. You can go to an art gallery, the theatre, a conference, festival or workshop and see things which are forbidden in licensed porn. This just goes to show how perverse the British are. Still hypocrites at heart.
The SFC believes that the law has no business in what consenting adults view or do between themselves. We also believe that the laws should be the same for gay men as gay women and heterosexuals.
Sexual Behaviour
SEX IN PRIVATE is legal except:-
• where force or threat of force is used
• when one of the parties has not consented (see date-rape drugs and issues on consent, below
• when the sex involves S/M – see below
• when one or both partners is under the age of 16 for hetero or lesbian sex and now also for gay sex (Sexual Offences Amendment Act 2000)
• when sex involves animals
SEX IN PUBLIC PLACES is legal between heteros and lesbians (but not gay men) if it does not cause alarm or distress – so “dogging” is legal if it is in a secluded place. However, if you have sex in a place where you are likely to be seen by the general public, for example in the street, you would be contravening the Sexual Offences Act because alarm would have been caused. There is always the risk, however, of prosecution for “outraging public decency” (Common Law Offence).
NUDE / TOPLESS SUNBATHING on the beach and in parks is legal. Nudity is even legal in Selfridges if it’s art. Nudity in what is generally considered to be inappropriate places, however, could be prosecuted under the Indecent Displays Act and Sexual Offences Act.
EXPOSING MALE GENITALS in public in order to shock is illegal, and can be prosecuted under the Sexual Offences Act 2003 Section 66. However, playful mooning would probably not be prosecuted unless someone took offence. There is, however, the risk of prosecution for “outraging public decency” (Common Law Offence).
SEX AT NIGHT CLUBS became legal since the Whiplash Club was acquitted in 1996, after being prosecuted under the Disorderly Houses Act of 1751. However, councils are now requiring sex clubs, public houses, lap dancing clubs and other venues showing nudity to purchase an entertainment licence which can cost £30,000 per annum. Occasional licences cost less, depending on the size.
The code of conduct of the strippers or performers has to be submitted to the local authority which imposes conditions. The City of Westminster insists that lap dancers wear g-string but the Borough of Camden does not. Licences are granted if there are no objections upheld from the local residents, but the council also takes into account proximity to areas of highest levels of recorded crime and cumulative adverse impact of sex-related licensed activities within the vicinity.
Conferences and workshop events do not require special licences to include nudity or sexual activity. Lesbian and gay clubs have been allowed freedom but may need an entertainment licence if shows are staged.
Despite being legal, many citizens are afraid to go to sex or fetish clubs for fear of being recognised – eg council workers might loose their jobs.
SEX PARTIES AT HOME are tolerated, but if you charge for entrance you may need a an entertainment licence or be prosecuted for managing a brothel. (The Disorderly Houses Acts make sex parties illegal if run on a regular basis). Plus there is always the rist of prosecution for “corrupting public morals” (Common Law Offence).
If you charge for drinks you will require a liquor licence.
LESBIAN, GAY. BISEXUAL AND TRANSGENDER ISSUES
Section 28 of the Local Government Act 1988 was repealed in Scotland in 2000 and in the rest of Great Britain on 10th July 2003, so that authorities can now “promote homosexuality”. Lesbian, gay, bi and transgender (LGBT) issues can now safely be addressed in schools and libraries. Teachers can intervene against homophobic bullying and abuse.
MALE GAY SEX is legal in private, between consenting men who are 16 or over (Sexual Offences Amendment Act 2000). It is no longer limited to two people. Men may hold hands and kiss in public (Sexual Offences Act 2003).
Cottaging (sex in toilets) and sex in public is illegal. The new Sexual Offences Act makes sex in public lavatories with the door closed lawful, although the same Act makes it illegal to peep at this sex act through a hole in the cubicle!
LESBIAN SEX has no special legislation, other than the normal criminal law of coercion, and age limits under the Indecency with Children Act (now 18+ years thanks to the Sexual Offences Act 2003).
DATE RAPE DRUGS are illegal under the Sexual Offences Act 2003
SEX WITH ANIMALS is illegal in Britain. The courts view in recent times has been that the individual needs help rather than punishment, and a fine or community service is imposed.
BDSM – short for Bondage Domination Sado Masochism. In other words, using power-play, role-play, domination, submission and corporal punishment in sex. It is legal so long as it is consensual, any marks or wounds last no longer than 10 minutes, and there is no piercing for pleasure. These limitations were decided after the notorious Spanner Case. Three gay men were sentenced under the Offences Against the Person Act 1861. The ruling was not overturned on appeal and they served three years in prison. Later the case was taken to the European Court and still not over turned.
Since the Spanner conviction, however, other cases of marking have been acquitted, one involving “bottom branding” between a married couple. The Spanner Trust is working hard to get the statute law changed to ensure there are no more prosecutions, and make S/M acceptable in modern society.
INCEST is illegal between siblings. The Criminate Law Revision Committee recommended that incest between a brother and sister older than 20 should no longer be a crime, but Parliament has done nothing to reform the law.
SEXUAL DISCRIMINATION
There are no specific laws against discrimination on the grounds of sexual taste, orientation or gender modification, apart from the ordinary laws against discrimination and unfair dismissal. People are sometimes treated badly in work situations and even fired because of sexual orientation. These issues can also effect care of children.
The SFC supports gay marriages, which are not recognised in Britain, even though in Denmark and Holland same sex couples can legally marry just in the same way as heterosexual couples. The SFC feels that any laws recognising relationships should include the full range of long-term ones. In 2004, the Government gave a guarantee that the new equality and human rights commission will cater for the distinct needs of disabled people and that the programme of legal reform will continue. This will include disabled people’s rights to be sexual beings.
CONSENT OF PEOPLE WITH LEARNING DISABILITIES
The law is currently unclear and insensitive to the sexual needs of people with learning disabilities. The question of valid consent needs clarifying. Currently, the legal definition is that the individual must be able to understand the nature of the sex act and its consequences, there is no pressure used, and they are able to communicate their decision to have sex. There are a few guidance notes on what to look for when seeing if a relationship is consenting or not. These include:
• Is there a power imbalance in the relationship (authority, intellect, physical ability, wealth, strength)?
• Are any inducements being used to gain sexual activity?
• Do both partners have the same expectations for the relationship (i.e. just sex vs. loving relationship)?
• Are there any actual or perceived threats to the person?
• Are both parties able to effectively give consent (verbally and non verbally) and can they appreciate the other partner’s right to refuse consent.
• Do both partners understand the possible consequences of sexual contact (pregnancy, STI’s)
• Is the person engaging in the act voluntarily, free from coercion?
• Is the person able to protect themselves from harm, or avoid situations where harm must occur?
• Does the person have the assertiveness skills to stop sexual contact/leave the relationship if they wanted to?
• Is the person aware of appropriate times and places where sexual activity can take place and what behaviours would be illegal?
Care Workers including all paid and voluntary staff, may not legally have sex with people with learning disabilities, even if they have a learning disability themselves. (Sexual Offences Act 2003)
The Mental Incapacity Act which will become into effect in September 2005 has been subject to pre-legislative scrutiny by a Joint Parliamentary Committee. The Committee published its report in November 2003 and the Government published its response in February 2004. see : http://www.publications.parliament.uk/ pa/cm200304/cmbills/120/2004120.htm http://www.dca.gov.uk/menincap/mcbfactsheet.htm http://www.mind.org.uk/News+policy+and+campaigns/Policy/Mental+Capacity+Bill.htm
Basic Issues:
• In practice, there is no clear accepted definition of capacity to sexual consent
• There is no concensus of what people need to understand about sex in order to consent to it
• Duty of care may go beyond the legal capacity to consent
• Capacity to consent can improve with experience. People with learning disabilities should not automatically be given a test and test results should not be laid down irreversibly in clinical notes
• Ongoing education / training and support is essential
• Boundaries in school settings and residential homes need to be formulated
• All local authorities should have an expert on consent to go to for help and advice.
Pornography
PORNO- POSSESSION
You are allowed to possess any porno so long as it doesn’t contain illegal acts and images of extreme pornography (life-threatening acts, sex with animals or children).
Possession of Indecent images of children under 18 is criminalised by the Criminal Justice Act 1988 and Public Order Act 1994 and also the Sexual Offences Act 2003. The latter raised the age limit from 16 to 18. This includes computer imagery and simulated imagery, drawings and but not art paintings.
PORNO – IMPORTING
Customs and Excise are a rule unto themselves and have no published guidelines, although they are supposed to follow the rules of the British Board of Film Classification. All you can do is follow the same rules as possession and hope for the best, which is a shame as you will find much more interesting porn abroad. If they stop you on entry into this country (or seize a parcel addressed to you), your home could be searched and your porn collection seized. The importation of porn is illegal under the Customs Consolidation Act 1876.
PORN FOR RESEARCH
Academics can claim justification for posession of prohibited material for research purposes, ie indecent images of children.
MAKING PORN
It has always been legal to shoot hardcore, and edit pornographic films in the UK. The restrictions are on selling and distributing it. Illegal acts, such as actual rape, strong S/M, or sex with children or animals would, however, make filming or photography of them illegal.
WATCHING PORN ON TV
The new Broadcasting Act still prohibits sexually explicit TV shows and forbids the advertising of proscribed foreign sex satellite services. Even pay-to-view channels broadcast within the UK are not allowed to show explicit sex. The Independent Television Commission (ITC) was replaced by Ofcom in December 2003. The SFC recommended to Ofcom that it deregulate porn in 2004. Ofcom consulted the public on “ALL aspects of broadcasting regulation” and in 2005 maintained the ban on R18/hardcore material.
PORN ON YOUR COMPUTER
The Police and Criminal Evidence Act 1994 criminalises computer porn. You are unlikely to be prosecuted unless visiting kiddie porn sites. Since 1999 people who have been found downloading indecent photographs of children on their computers are being charged under the Protection of Children Act 1978, following the Bowden precedent. Downloading an image and possession of an image were defined in the Fellows and Arnold case.
Pete Townshend was charged also with “incitement to distribute” because he apparently asked for the images on the website. So many persons have been found to have downloaded pictures from paedophile sites, included prominent persons, that the police have given up investigating every case. Many people investigated for this offence have committed suicide, the latest being an admiral in Gibraltar in January 2005.
All sexually explicit sites open with a warning and a statement to ensure that the viewer is 18 or over, to prevent unsuspecting adults and children from entering. However, you can enter a site via a link and never see the home page with its warning.
PORNO – ACTING is legal unless
• the actor is under 18
• the actor has not consented
• illegal acts are performed eg with animals and/or children
PORNO – SELLING
Trading is legal so long as videos and DVDs have been certificated by the Britsh Board of Film Classification. They are not certified if they contain:-
• images that involve people under the age of 18
• sex with animals
• acts involving shit or piss
• S/M that appears life-threatening
• Rape or simulated rape (to prevent a hateful and/or violent impulse being aroused in the viewer).
Magazines and books sold in licensed sex shops are legal unless they contain the acts prohibited in videos. This is because the Crown Prosecution Service and Customs follow the standards set by the British Board of Film Claassification. Unlicensed premises eg bookshops and newsagents self-censor as they wish to avoid the risk having all their stock seized.
The written word is now not prosecuted, but also may be self-censored by publishers and distributors. There are no definitions of what may and may not be described or shown lawfully in Britain. Swapping amateur porn is classed as trading, under the Video Recordings Act and therefore theoretically the material requires a licence from the British Board of Film Classification, which costs around £1,000 per film and the films should strictly speaking be traded through a licensed sex shop . If you are selling to the public in a sex shop, you need a sex shop licence.
For an erotic show at an exhibition centre, you need an Entertainment licence from the Council, to which conditions will be attached, eg no complete nudity. Either may cost as much as £20,000 a year. Occasional licences for a one-off event costs less.
Newsagents have adopted a “top shelf” system to stop housewives complaining about porn when searching for Women’s Realm, and stop children, people in wheelchairs and people of small stature being able to reach the porn! In any event, such porn cannot be too explicit, ie “hard” as this can only be sold in a licensed sex shop. It must constitute less than ten percent of the total publictions on sale in the shop. People must be over 18 in order to purchase both soft and hard porn. The City of Westminster Act rigorously suppresses unlicensed sex shops.
Galleries and art centres displaying erotic High Art and Low Art are normally not prosecuted, even for hard-core material, unless they contain indecent images of children under 18, or even innocently naked children. Erotic art does get be seized by customs, which sometimes means it cannot appear in the show it was being sent over for.
It also remains an offense to send indecent items through the mail (Post Office Act). Hard-core porno cannot be sold to the public by mail order. It can only be purchased in a licensed sex shop over the counter (Video Recordings Act).
PORNO IN CINEMAS
Films can only be shown if they have been certificated by the British Board of Film Classification under the guidelines mentioned above. R18 films and videos, ie hard core porn can only be show in cinema clubs, not public cinemas. The audience must all be 18 or over. (The Cinemas Act 1985 censors films to be shown in cinema clubs). The first fully-licensed R18 cinema club opened in April 2003: the Sunset Cinema Club in Brewer Street, Soho.
18-rated films as opposed to R18 films, can be shown in cinemas but they do not usually contain hard core imagery unless it can be ‘artistically justified’ (Cinema Act 1985). Art Film Theatres with private membership and screening rooms an show any film they wish. These theatres include the National Film Theatre which organises the Lesbian and Gay Film Festival and the London Film Festival and the Institute of Contempory Arts in London. Even in these venues, however, local Councils can still try to stop screenings that they consider unsuitable (eg Crash at the LFT).
Small cinema clubs such as The Willow in Old Street have recently disappeared due to Hackney Council demanding large licence fees. An erotic film festival planned at The Lux Cinema was banned in 2000 by Hackney Council hours before opening, following a “shock-horror” exposé in the Hackney Gazette. Once the newspapers have shamed a sex event, or there has been one single complaint, the Council is likely revoke the necessary entertainment licences.
EROTIC DISPLAY
There are old Common Laws against the exhibition indecent activities, pictures or things. They prevent sex shops displaying goods in their windows, and advertising hoardings from being too explicit or plain horny!
SEX EDUCATION BOOKS
Books for adults can thankfully show images of what they are teaching us – at last! But sex education books for children and teenagers, however tame, are vulnerable to prosecution for obscenity, because the young readers might be “corrupted”. Sadly, the Learning and Skills Act 2000 removed any local authority responsibility to provide sex education.
GOVERNMENT GRANTS are not given to people for projects which involved the creation of pornography or other material for the sex trade (although thankfully the National Lottery is not so restricted and gave £359,291 to the UK Network of Sex Workers in February 2005). Job Centres thus refuse to carry advertisements for vacancies in the sex industry, eg lap dancers.
Performance
STRIPTEASE AND EROTIC PERFORMANCE
Many local councils now require an entertainment licence for striptease, lapdancing and nude performance art, unless the show is part of a conference or workshop event. When applying for a licence, the venue (which may be a public house) is required to publish an advertisement put up a notice inviting local residents to object. In addition, the application may be rejected on Health and Safety grounds. Licences can cost £30,000 per annum, although an occasional licence costs less, depending on the size of the audience.
THEATRE PRODUCTIONS
The Theatres Act 1968 abolished theatre censorship but retained the law against obscene performances. That can lead to revocation of the necessary entertainment licence.
Prostitution
BEING A PROSTITUTE is legal – both hetero and gay, so long as he/she is 18 or over. The problem for prostitutes is that most things they need to do to earn a living are illegal, ie:-
• explicitly advertising their services – although newspapers now happily take “massage” adverts and sex workers now advertise on the Internet calling themselves escorts.
• soliciting in the street – which can mean as little as walking along with a condom in your handbag – is outlawed by the Street Offences Act 1959. Street walkers can also be prosecuted under the Vagrancy Act 1824. Men can be prosecuted for “importuning”, whereas women cannot (Sexual Offences Act 2003).
• hanging out in the street – some street workers are being prosecuted for public order offences and receive ASBOs – Anti Social Behaviour Orders. Local authorities use ASBOs out of context to ban prostitutes from working in their area. There is also the possibility of prosecution for “outraging public decency” (Common Law). This has been used against “back-ally” sex workers including those who give quick hand jobs.
• cause alarm, distress or harassment – which could be from just “being a prostitute” – under the Public Order Act 1986.
• The Licensing Act 1964 prohibits landlords serving a prostitute and the Town Police Clause Act of 1847 criminalises selling refreshments to sex workers sitting together. The worry about the latter supposedly defunct Act is that it could criminalise health workers and volunteers who run drop-in centres.
• prostitutes paying men to help them (although you may be allowed to employ a female “maid”). The Sexual Offences Acts 1956 and 2003 criminalise men for living off immoral earnings, and men and women for “controlling prostitutes”.
• working together in a flat, in a brothel, massage parlour or for an agency is illegal under the Disorderly Houses Act 1751 and the Sexual Offences Acts. It is normally tolerated in practice, so long as there are no drugs or underage people involved, and the neighbours have not complained.
• renting a flat is often difficult, as standard leases forbid the premises to be used for “immoral purposes” and this means that a prostitute risks having her tenancy terminated.
• as they are providing a service, prostitutes should strictly speaking charge VAT if their earnings are over and above the relevant limit. But clients don’t want to be identified, let alone be handed a VAT invoice. Prostitutes fear the Inland Revenue making extortionate income tax assessments (eg the Lindi St Clair case). As prostitution itself is lawful, the income is taxable. Most sex workers thus make the choice to either (a) work undercover, stating another profession on their tax form. The Inland Revenue really don’t care what you call yourself, so long as you pay your tax. or (b) work outside the tax system, in the black economy. To avoid suspicion and keep their National Insurance up-to-date, many sign on at the Job Centre for six months after which Jobseekers Allowance ends.
• sex workers have few legal rights and little protection from the law. They find it very difficult to get police protection or to take a case to court against a violent client for assault and there are many violent clients. Technically, if a client refuses to pay, that is rape because consent was a condition of payment. Juries, however, rarely convict a man of raping a prostitute.
PHONE SEX is legal, but restricted by guidelines drawn up by the ICSTS under the Telecommunications Act 1984 which criminalises indecent phone conversations. Chatlines operating in Britain are therefore expensively routed through foreign providers to avoid prosecution under British regulation, which requires every phone call to be recorded and the caller to be warned that this will happen, thus frightening him off!
DOMINATION AND FANTASY PARLOURS – grey area. If intercourse, oral or manual sex takes place, they would come under the prohibitions regarding prostitution. Dominatrices also need to stick to the regulations for S/M enforced by the Offences Against the Person Act. Selling services which include piss and scat counts as prostitution.
RUNNING AN ESCORT AGENCY OR BROTHEL is illegal under the Sexual Offences Acts because it is controlling prostitutes. The police tend to turn a blind eye so long as there are no drugs or underage people involved, and nobody has complained, but you cannot rely on this. There are also prosecutions if the business is large-scale and / involves illegal immigrants. Yet the nicest Madams (and Monsieurs) have been sent to jail in recent years. In 2003 Westminster Council even obtained Compulsory Purchase Orders for houses being used for prostitution, at 3 and 4 Peter Street, and 2 Berwick Street, Soho. The Council want the houses to be used for residential purposes only and the orders made eight prostitutes homeless.
CONTROLLING A PROSTITUTE
The Sexual Offences Acts 1956 and 2003 are also used against agencies and parlours and even drop-in staff and employed health workers.
BEING A CLIENT is legal, unless you are kerb crawling. Fundamental feminists are for ever trying to persuade the government to make paying for sex a criminal offence (as is now the case in Sweden).
KERB CRAWLING
Offenders can be prosecuted under the Sexual Offences Act 1985. The resultant publicity has caused some defendants to suffer loss of employment and/or divorce.
Miscellaneous
ABORTION
Legal in England, Scotland and Wales up to 24 weeks of pregnancy, but totally illegal in Northern Ireland.
CORRUPTING MORALS
Society is “protected” by the Common Law against Conspiracy to corrupt public morals but this offence has not led to a conviction since the Oz trial in the 1960’s.
WHAT TO DO IF THE POLICE RAID YOUR HOME
see advice on http://www.spannertrust.org.uk
For helplines and other legal advice please visit our legal advice page.